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To Mediate or to Fight - One Family Mediator's View

View profile for Andrew Robinson
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Around eight months or so have now passed since the government passed legislation introducing an additional hurdle to cross before anyone that is separating from their spouse or partner is allowed to make an application to the court, either making a claim against their property or assets or seeking an order setting out what the arrangements will be for their children.

It is now a requirement that such a person must attend a meeting with a family mediator at which information is given about the alternative methods available by which they can resolve their dispute. In practice this primarily involves information about the family mediation process itself and, in fact, is known as a Mediation Information and Assessment Meeting (MIAM).

The impetus behind the change was a desire to see less people engaging in protracted, expensive and stressful court battles which also swallow up huge amounts of public resources and court time. Most would agree this to be a laudable objective.

So the question arises, has this worked?

Well, one of the problems that the government had in introducing the change was that they could only oblige people to go along to a meeting and be given information, not to actually mediate. This is because an individual cannot actually be compelled to mediate. This goes against the whole idea of family mediation requiring, as it does, the willing commitment and engagement of both parties if it is to have any chance of succeeding. The fear was that lots of people would simply attend one meeting to “tick the box” before making an application to court anyway.

Additionally, there appeared to be an assumption by the government that people were not being given full information about the alternatives available to court by their lawyers. In truth such assumption is little more than prejudice, based on the old myth about divorce lawyers ratcheting up the tension in order to increase their costs. In fact, in this writer’s experience, the vast majority of specialist family solicitors always give a client the full range of options available for resolving marital disputes and only advise court application as a last resort. Therefore, in a sense, obliging lawyers to send their clients off to family mediators to give them information that they had already would do little other than line the mediators’ pockets.

So I repeat, the question must be asked as to whether the new requirement has actually brought about any notable change to the way that people are resolving their disputes. This family mediator’s answer is that it has.

Having conducted numerous MIAMS, most do appear suitable for family mediation

Having no Public Funding (Legal Aid) franchise, the main challenge for my family mediation practice had always been to secure sufficient referrals (whether from clients or their lawyers) to justify it’s existence. However, this has changed significantly since the introduction of the changes. I now receive a steady stream of referrals from various other solicitors locally and I have also received a reasonable number of direct referrals directly from clients with an interest in family mediation.

Clearly, such referrals do not always lead to full mediations because this requires the engagement of both parties. However, it is fair to say that, having now conducted numerous MIAMS, most do appear suitable for mediation to be attempted. I have invariably convinced the party who has been referred to me that mediation is at least worth a try. Whilst securing the engagement of the non-referred party has been more hit and miss, a sizeable percentage have welcomed the referral and, having heard about the process, have embraced the opportunity of attempting a different method of resolving their dispute.

That is not to say that family mediation is a panacea. Nor that it is for everyone. Nevertheless, since April 2014, I have now concluded numerous successful mediations for people who have managed to find agreement on issues relating to their children or their finances often within a reasonably short period of time and often when they have been engaged with their solicitors in fruitless correspondence for many months (sometimes years) beforehand. I suspect that I would not even have seen most of these clients for an initial meeting if the requirement to refer for a MIAM had not been introduced.

Couples are capable of resolving their disputes with a little help

In conclusion, there are some cases where couples are so fundamentally opposed to one another that the intervention of a judge is necessary and desirable at the earliest possible opportunity. For those couples, the MIAM requirement may be viewed as introducing further red tape and unnecessary delay into the process. However, it is my experience that these couples are hugely outnumbered by those couples who are capable of resolving their disputes with a little help from an independent third party without the need for a costly and damaging court battle. Therefore, in my view, the introduction of the MIAM requirement represents a significant step forward.

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